R v XY

[2015] NSWDC 28

District Court

New South Wales

Medium Neutral Citation:	R v XY [2015] NSWDC 28
Hearing dates:	23 January 2015, 12 February 2015
Decision date:	12 March 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For Orders see [117]
Catchwords:	Sentence – importation of commercial quantity of heroin
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Code (Cth) Criminal Procedure Act 1986 (NSW)
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 DPP v Peng [2014] VSCA 128 Pearce v R (1998) 194 CLR 610 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Hong [2012] NSWDC 267 R v Huang (2000) 113 A Crim R 386 R v Kaldor (2004) 150 A Crim R 271 R v Lee [2007] NSWCCA 234 R v Nguyen [2010] NSWCCA 238 R v Nguyen & Ors (2005) 157 A Crim R 80
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions XY (Offender)
Representation:	Counsel: M Allnutt (Commonwealth Crown) P David (Offender)
File Number(s):	13/208751
Publication restriction:	Name of offender – pursuant to s 7 Court Suppression & Non-Publications Orders Act 2010 (NSW)

REMARKS ON SENTENCE

Introduction

1. On 9 July 2013 the offender was charged with an offence pursuant to s 307.1(1) of the Criminal Code (Cth) (“the Criminal Code”) of import commercial quantity of border control drug. The particulars of the charge were as follows:

“Between 10 March 2013 and 22 June 2013 at Sydney, New South Wales, did import a substance, the substance being a border control drug, namely, heroin, and the quantity imported being a commercial quantity, contrary to s 307.1(1) of the Criminal Code (Cth).”

2. The offender pleaded guilty at the Central Local Court on 12 February 2014 and the Crown concedes that was the first opportunity for him to do so after service of the prosecution brief.

3. The matter came on for sentence hearing before me on 23 January 2015 when an order was made for suppression of the offender’s name pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

4. At that time, the offender adhered to his plea of guilty and gave evidence. The matter was adjourned part heard to 12 February 2015 to complete the sentence hearing.

5. A certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) certified that the offender had also been charged with a related offence of being unlawfully in possession of property pursuant to s 527C(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for that offence was imprisonment for six months and/or five penalty units.

6. The maximum penalty for the offence pursuant to s 307.1(1) of the Criminal Code is life imprisonment and/or 7,500 penalty units.

Summary of the Facts

7. On 4 June 2013, a 20 foot shipping container containing eight pallets of centrifugal pumps and other machinery was loaded on board a vessel “JPO Vulpecula” at Port Klang, Malaysia. The consignee was Meadowland Machineries at an address in Marrickville NSW 2204, Sydney, Australia.

8. The consignor’s invoice for the consignment dated 23 May 2013 referred to the consignee’s email address as [email protected].

9. There was no company registered with ASIC by the name of Meadowland Machineries Pty Limited.

10. On 18 June 2013 the container arrived at the port of Brisbane, following which it was examined by Australian Customs and the Australian Federal Police (“AFP”). Each pump was revealed to conceal white powder. The total weight of the powder was 69.24 kilograms and forensic analysis revealed heroin with purity between 63 and 77%. The calculated pure weight of the heroin was 49.42 kilograms. It had a wholesale value of over $19 million, and a street value between $49.5m and $57.5m.

11. On 19 June 2013 a Controlled Operation Authority was issued to facilitate the delivery of the container, which, on 21 June 2013, was transported to the consignee’s address at Marrickville. The offender took delivery of the container which was unloaded onto the footpath at the front of the Marrickville warehouse. The offender put four padlocks onto the container then signed the delivery docket for the driver.

12. The offender is a Malaysian citizen. In February 2013 he purchased a holiday tour package from Singapore for a tour of Sydney and Melbourne. On 9 March 2013 he departed Malaysia, and on 10 March 2013 he arrived at Sydney. Upon arrival he attended an Optus store and purchased five pre-paid telecommunications services, one of which ended in 594; that was the consignee’s contact number for the subject container.

13. At the end of the seven day tour, the offender remained in Melbourne rather than returning to Singapore, and then proceeded to Sydney. On 14 March 2013 he made enquiries about renting warehouse space in Marrickville and on 28 March 2013 he attended the Marrickville warehouse and paid the owner in cash. The offender paid the monthly rent for March and April.

14. On 1 May 2013 the offender opened two “Smart Access” accounts at the Commonwealth Bank in his own name. He provided a telephone number and the same email address as the consignee’s email address referred to above. A total of $12,950.00 was deposited into one account, of which, $7,800.00 was transferred to the other account between 17 May and 20 June 2013.

15. On 6 May 2013 a consignment from Malaysia, being an envelope containing documents, was delivered at the Marrickville warehouse. On the same day the offender provided a written authority to a customs broker providing his own name, the company named Meadowland Machineries with an ABN number which was in fact the ABN of his landlord’s company, together with the same email address referred to above, and a phone number ending in 909.

16. On 18 May 2013 the container arrived at Port Botany and the customs broker arranged for its delivery on 21 May 2013. The driver was instructed to call the number ending in 909 prior to delivery. The container was delivered to the Marrickville warehouse and the offender was present and signed the delivery docket. On the same day, the offender made and received seven calls to various Malaysian telephone numbers on the phone number ending in 909. He then used a pallet jack and forklift to unload the contents of the container into the warehouse. On the same day he made and received seven calls to a person known as “Dennis”. That afternoon he met Dennis at Strathfield.

17. The next day, 22 May 2013, the offender returned to the warehouse. He had purchased tools from a hardware store in Marrickville and returned to the warehouse in the afternoon. The delivery of this first container was referred to during the sentence hearing as a “dry run”.

18. Between 23 May 2013 and 13 June 2013 the offender made and received a number of phone calls from services ending in 710 and 909 to and from various persons in Malaysia, including an unidentified male, a person known as “Ah Dee” and a person known as Tam Chong Pin, (“Pin”).

19. Pin confirmed monies that were to be remitted to the offender by Western Union and Ah Dee advised of a shipment loaded on 28 May 2013 that should arrive in 20 days. On 13 June 2013 the offender advised Pin that the estimated arrival date is 20 June 2013 and he received several text messages in return.

20. The same customs broker was employed by the offender to clear the second container.

21. On 14 June 2013 documents were delivered by TNT to the offender at Meadowland Machineries, including the packing declaration, commercial invoice and bill of lading.

22. Between 15 June and 21 June 2013 the offender made and received calls on services ending in 710 and 909 to and from various Malaysian telecommunication services with the persons identified as Ah Dee, Pin and unidentified persons “UMI 1” and “UMI 2”. The intercepted communications which were mainly in Hokkien and the Malay languages, concerned inter alia money being transferred to him by Western Union and the delivery of “tea leaves” or “ki”. The tea leaves were referred to as “golden dragon” or “green dragon” and there was discussion about its quality.

23. On 20 June 2013 Pin instructed the offender of a code, namely, that if Pin spoke in Hokkien that it would mean that there was nothing happening and “if there is any issue, you have to speak English in secret … If you begin to speak in English, such as ‘how are you’, that means ah, … ah, something is happening … my side will know what to do”. The offender was advised the same day that a delivery would take place at 5pm the next day, and that he was sending through “2955”. On the same day, the offender attended a newsagency in Campsie and collected $2955 via Western Union.

24. On the evening of 21 June 2013 further phone calls were intercepted between the offender and Pin, Ah Dee and a person in Malaysia referred to as “Big Brother” confirming that the container had arrived at the Marrickville warehouse and that the offender was to unload it on the following day.

25. On 22 June 2013 the offender returned to the Marrickville warehouse and commenced unloading the contents of the container. He confirmed by phone to Pin on that day that he had counted and checked that there were 422 pieces. He later telephoned Pin to tell him that the screws were scratched and Pin told him not to worry. At 1.30pm on the same day the offender rang Pin and informed him that the “things are gone”. The offender told Pin that the “ki” is gone and Pin asked him to continue to open the others. At 1.39pm the offender rang Pin back to tell him that he had opened three and that the metal container was missing and Pin told him that he would “call the opposite party”.

26. At 1.45pm Pin telephoned the offender on the number ending in 909 and the offender whispered “someone is knocking the door” and the words “in trouble already” and the call ended. That call was at 1.45pm.

27. At 1.46pm on 22 June 2013 AFP members entered the warehouse and arrested the offender. He was in possession of the following items:

“(a) A Nokia Dual SIM card mobile telephone taken from the offender’s hand;

(i) The contained 1 Vodafone SIM card for telecommunications service ending in 710 and 1 Optus SIM card for telecommunications service ending in 909

(ii) The Optus telecommunications service ending in 909 was subscribed in a false name, ‘Mr Jannet Harvey’ of 68 Amy St, Campsie.

(iii) The Vodafone telecommunications service ending in 710 was subscribed in a false name, ‘SRF YG’ born 16 March 1977 of 17 New St, Auburn.

(b) Malaysian passport issued in the name of XY;

(c) NSW drivers licence 15821209 in the name of XY of 28 Lachal Avenue, Kogarah with expiry date 15 December 2017;

(i) RTA records showed that licence number 15821209 is held by a ‘George Kuburlis’ born 17 July 1991 of 28 Lachal Avenue, Kogarah whose licence was suspended from 30/4/2013 to 29/7/2013;

(d) 1 clip seal bag containing 6 passport photographs and a receipt for those photographs from Campsie dated 26 March 2013;

(i) the passport photograph is the same photograph on the false drivers licence (above).

(e) Commonwealth Bank of Australia debit card in the name of XY linked to account #11150216;

(f) 7 business cards in the name of XY;

(g) Samsung camera which contained 3 photographs of the Marrickville warehouse and 1 photograph of the Offender;

(h) Hanjin container seal HC971591 which was on the subject container;

(i) a Black Sony Ericsson mobile phone with no SIM card;

(j) AU$560 cash; and

(k) keys to the warehouse and the offender’s residential premises with orange tag labelled ‘basement 86’.”

28. After his arrest the offender agreed to assist the police in the investigation and subsequently participated in a Controlled Operation from 22 June 2013 to 9 July 2013.

29. On 9 July 2013 the AFP executed a search warrant at the Marrickville warehouse and observed boxes from the unloaded containers, together with tools, and on the same day executed a search warrant at the offender’s residential address where they seized the following items:

“(a) 1 Nokia mobile telephone containing an OptusSIM card for telecommunications service ending in 954 and empty Optus SIM card packaging for the same service (the number listed as the consignee’s contact number on the subject consignment);

(b) 1 Samsung mobile telephone containing a Malaysian SIM card concealed within a Panadeine box;

(i) in a recorded conversation under caution, the Offender stated that he obtained this mobile phone from Dennis when he first arrived in Australia. He did not know Dennis before and there was instruction from Malaysia for Dennis to contact the Offender. He stated that he put the phone inside the Panadeine box because the phone was of similar size.

(c) TNT consignment containing [the Custom Broker’s] invoice, supplier’s invoice, supplier’s packing declaration, supplier’s packing list, supplier’s annual packing declaration, draft master bill of lading, delivery docket signed by the Offender, house bill of lading and Customs entry document, all relating to the May container;

(d) TNT consignment containing house bill of lading, supplier’s packing declaration and packing list, supplier’s invoice and original delivery docket signed by the Offender, all relating to the subject container;

(e) 1 spanner set and 1 drive and socket set;

(f) handwritten notes with numbers and addresses including the following:

(i) address of the Marrickville warehouse;

(ii) contact numbers and address details for the Customs broker;

(iii) “Meddleland (sic) 0432076909”

(g) various boarding passes and other travel documents including Ace Tours & Travel invoice dated 26 February 2013 in the name of XY;

(h) Commonwealth bank of Australia documents in the name of XY;

(i) handwritten note of the consignee’s email address of the subject container;

(j) a Compaq laptop

(i) the Offender purchased this laptop from Harvey Norman for $348 in cash on 22 March 2013. He provided phone number ending in “594” (listed as the consignee’s mobile telephone number) and address as “George St Sydney”.

30. The offender declined to participate in a recorded interview.

The Offender’s Participation in the Controlled Operation

31. Exhibit A contained a summary of the offender’s participation in the Controlled Operation. That included a transcript of conversations he had with Pin and Big Brother on 22 June 2013. In the first conversation with Pin he had spoken partly in Hokkien and partly in Cantonese. In the conversation with Big Brother he had coughed twice and had been asked by Big Brother “Have problem?”, to which he replied, “No, there is no problem. Ah. Okay”. Following those phone calls both Pin and Big Brother ceased all telecommunications with the offender until 1 July 2013.

32. Between 23 June and 9 July 2013, the offender had 41 telephone communications with Ah Dee on services ending in 909 and 710. During one of those calls the offender asked Ah Dee to credit his wife’s account with monies owed to him. Ah Dee said he would do so.

33. On 28 June 2013 the offender called his wife to tell her to send the money to him in Australia after she had received it and to withdraw all money from her account when it came in.

34. On 1 July 2013, during a number of telephone calls, the offender confirmed to Ah Dee that the job had been done and Ah Dee confirmed that money had been deposited in his account.

35. Later that same day “Big Brother” called for the first time since the offender’s initial arrest. He said to the offender:

“You go tell him that you are being arrested some of the thing which is not true … you do it this way, what is the purpose. Right? You have made me worried and fucking cunt, pressure us to get money for your family.”

36. The following day on 2 July 2013, Ah Dee telephoned the offender and confirmed the money was deposited in his account. Later the same day the offender’s wife called and confirmed that the money had been received and she had settled the offender’s credit cards.

37. On 5 July 2013 the offender telephoned his wife and had another conversation about the money they had received. He continued to receive calls from Ah Dee on 6 and 7 July 2013. They concerned a meeting with a new contact in Australia and how the offender was to meet people for the purpose of disposing of the drugs.

38. On 8 July 2013 a person calling himself “John” telephoned the offender and agreed to meet him at 10am in the city the following day, 9 July 2013. John sent the offender a text message stating “Shark Hotel pub”.

39. Between 4.14am and 4.19am on 9 July 2013 the offender used telecommunication service ending in 4268 to place four phone calls that were all unanswered. They were to various services in the names of Dennis, the offender’s flatmate Alex Nim, a syndicate member known as “Choy Ka Ho” and another service used by Choy. None of those calls were authorised by law enforcement.

40. At 11.40am on 9 July 2013 the offender met with an unidentified male thought to be “John” at an outside table at Toast Café, located at 45 Reservoir Street, Surry Hills. The offender was wearing a listening device for that meeting and an arrangement was made whereby later that day the offender would go with John’s brother.

41. A 1.30pm on 9 July 2013 Ah Dee telephoned the offender to ask whether the work had started yet and the offender said he had met the people and not to worry. At that time the AFP made a decision not to pursue the meeting between the offender and the unknown persons.

The Evidence on Sentence Hearing

42. In addition to the Crown Bundle, exhibit A, the Crown tendered a statement of Federal Agent Evan Willey, which became exhibit B. Federal Agent Bradley Kerwan was called in the Crown case. He was aware of the contents of the statement of Mr Willey and gave evidence that the information contained therein was the truth.

43. In cross-examination Sergeant Kerwan gave evidence that he was aware that when unloading the goods on 22 June 2013 the offender alerted the person known as Pin to the fact that something was missing from the goods. He also agreed that the offender had alerted Pin to the fact that someone was knocking on the door, and a short time after his being arrested, he agreed to assist the police further in their enquiries.

44. Sergeant Kerwan confirmed that the offender had agreed to the meeting at the café on 9 July 2013 and was prepared to continue with the Controlled Operation. He gave the following evidence:

“Q: He was, notwithstanding any risk, the accused still indicated he was prepared to put himself at risk of exposure, wasn’t he, to pursue further communications, further arrests through the police at that stage?

A: He was prepared to continue to participate in the Controlled Operation which was to make phone calls and meet with other people to establish the identities of the persons who may take possession, but more importantly, in relation to the actual identifying the organisers of the importation here in Australia.”

45. The offender was aware that during the time he was in police custody and involved in the Controlled Operation that police were aware of all of his communications. During that time the police had possession of his phone. The offender had raised with police his concerns in relation to the awareness of the drug syndicate of his family in Malaysia. Sergeant Kerwan agreed that had the Controlled Operation gone further then the offender’s safety may have been seriously compromised. In respect of the extent of his assistance, he gave this evidence:

“Q: Would you agree that the person ‘John’ and others may have led to further intelligence in relation to other big names, not just in distribution but also with importation?

A: Certainly, but XY was in a position to provide that other information in relation to the importation domestically in Australia and has not.

Q: He has provided you, or through him, he has through the contacts that he has made and the attempts to make, he has provided you with some significant information though, hasn’t he?

A: He’s provided us with people who are potentially going to purchase the drugs here in Australia.

Q: Did XY tell you why he was motivated to assist you?

A: He wanted to reduce his potential in sentencing and also to protect his family.

Q: And he made that decision very quickly, didn’t he?

A: He did at the warehouse and then the fact that he made the coded phone call after that, but then continued to assist us where there is a period of time where decisions are made.

Q: You would agree that just in relation to the coded phone call, as you call it, but in fact in that same phone call it’s really actually quite an ambiguous phone call, isn’t it? He says on the one hand, he speak in – uses some Cantonese words but he also tries to reassure Pin for example that he’s checked and the goods are actually in there, that he’s found some material and that is after he was arrested, do you agree?

A: Yes.”

46. In re-examination Sergeant Kerwan gave evidence that the authorities had been unable to identify the persons referred to as Ah Dee and Big Brother. They had identified Pin, however, have been unable to locate that person. All of them resided in Malaysia. When asked what was the role of Ah Dee, he gave this evidence:

“A: Ah Dee was involved in bringing XY and Pin together and therefore had an investment in relation to the outcome of the job. He took over being Ah Dee’s boss as the controlled delivery went along because Pin had left the – or Pin was unable to be contacted so Ah Dee became involved in facilitating the meeting with XY and the Australian based purchasers.

…

Q: Ah Dee, what was his role primarily?

A: He would have been a boss but not the primary boss, overseas.”

47. When asked to clarify how the offender came to make unauthorised calls when the phones were in the possession of the police, Sergeant Kerwan gave this evidence:

“A: They weren’t in our possession. They were maintained in XY’s possession but in our control. So XY would seek our authorisation to make any phone calls using those numbers because they were the numbers that we were utilising to collect evidence under Controlled Operation.”

48. The offender’s case included a report of a psychologist, Laura Durkin, dated 5 July 2014 (exhibit 1) and a letter from the Chaplain of the MRRC dated 14 January 2015 (exhibit 2). A transcript of telephone calls was also tendered and admitted without objection as exhibit 3.

The Offender Gave Sworn Evidence

49. The offender gave evidence that he was born on 16 August 1973, was married with two children who lived in Penang, Malaysia. He stated that he provided a truthful account of his family and personal history to the psychologist who examined him.

50. The offender had been in touch with his wife who was suffering financial hardship in Malaysia. One of the children suffered autism. He agreed that he spoke Cantonese, Mandarin or Hokkien and that his English had improved since he came to Australia.

51. The offender gave evidence that he had agreed to assist the police after his arrest when a police officer said to him “if you are convicted it’s going to be a very high penalty and why don’t you assist the police and you may go home earlier.”

52. As to the alleged warnings that he gave syndicate members in Malaysia, the offender gave the following evidence:

“Q: Did you put Pin on notice that there was a problem and warn him by speaking Cantonese?

A: I believe I did.

Q: Do you agree that you also told Mr Pin that there was no problem, that you’d searched the bottom and that you found the items?

A: I cannot recall fully.

Q: At the time you were arrested how were you feeling?

A: I was very nervous, I was very scared.

Q: When you were assisting the police and you stayed with the police for a number of weeks, during that period of time, what was the purpose of your assistance throughout that time?

A: I was hoping to get a lenient sentence.

Q: During the time that you were there, did you make any unauthorised calls?

A: I got authorisation or I got approval for every call I made while I was there.

Q: Were you aware that the calls were being monitored?

A: Yes I was aware of that.

Q: And were you prepared to assist the police further?

A: Yes.

Q: When the police said that they were not going to take the operation any further, how did you feel about that?

A: I was surprised. I told them that I was hoping to help you further so I can get a more lenient and get less sentence. That Sergeant said something like ‘there is no need, you have done well, there’s no need to go any further’.

Q: And during the period of the time that you were with the police, were you making genuine efforts to assist them?

A: Yes.”

53. The offender gave evidence that the contact information he had given to police about the people who he knew in Malaysia, was the full information he had about those contacts. When asked how he felt about his offending in terms of the effects of drugs, he gave this evidence:

“A: Well in the past I was always busy with my work. I was always busy trying to make money, trying to make more money. After I was arrested and put in gaol I’ve learnt from newspaper and media just how serious drug is affecting the Australia community and having learnt that I felt very bad about myself.” (sic)

54. When asked whether, whilst he was assisting the police, he put members of the syndicate on notice that there was a problem, he gave this evidence:

“A: I wouldn’t have done that because I had already been helping the police for a short while. If I had done that it means I would be double crossing them and I would be abandoned by the police and I’ll be regarded as a dog, a traitor by the people in Malaysia.”

55. When asked about the cough that he was recorded making in a phone call in exhibit 3 numbered 285, he said that it was a reflex, that he had a very dry throat and he could not control himself.

56. In cross-examination the offender agreed that after he had spoken to Pin in Cantonese, Pin did not contact him again. The offender did give evidence that after that particular conversation on 22 June 2013 there was one further conversation with the person who may or may not have been Pin.

57. When asked whether, during his conversation with Big Brother, he coughed as a pre-arranged signal that something might have been wrong, the offender answered “I can’t be sure.” He agreed that after that call it was quite some time before he had another conversation with the person known as Big Brother.

58. The offender was cross-examined about his failure to provide information as to the people he knew in Malaysia. He explained that he had known Big Brother for five or six years. When he lost his job he met Big Brother at a place where he went for meals and he was asked whether he would be interested in coming to Australia for some work. He said he did not know Big Brother very well but that he was aware that he was a member of “underground society”. He did not know his real name. When asked whether he could physically describe him, he answered “he also has another name called Ming Zhai” and that he was based in Penang. He had not told the police that. When asked why, he said he was very nervous and he didn’t think much about it.

59. He gave further evidence that Big Brother was 50 years old, that he had met him by himself and that he did not know where he lived. Big Brother had introduced him to Pin, however, the offender had only spoken to him by phone. He gave this evidence:

“Q: So when you were in Malaysia, before you came over here, he spoke to you about looking inside the pumps to see what was there?

A: Yes, yes.

Q: What did he tell you to expect to find inside the pumps?

A: He told me when I was over there to check inside the pump and to see whether there was any damage and he told me something like that, like that, if you see something broken just sell it and don’t use it. He also told me that the money I would get from selling these things belongs to me. I didn’t know the scrap metal was worth nothing in Australia and nobody would buy them.”

60. The offender was cross-examined about the money he expected to make from the enterprise, and agreed that it was well over 100,000.00 Ringgit (“R”). It was Ah Dee who arranged for the payment of the money and he had frequent contact with Ah Dee after his arrest.

61. When asked how much money he thought he was entitled to, he said:

“A: Well at the end they agreed, we agreed on 180K, 180,000 because I knew that I was going to spend some time in gaol and I had to think about my wife and my family, then they paid my wife 150,000 at the end.

Q: And it was important that that money went to your wife. To you, it was important to you?

A: Yes.”

62. XY gave evidence that after negotiations with Ah Dee, he agreed to be paid 350,000 R, however, at the end he was satisfied with 180,000 R. He confirmed that 150,000 R was paid into his wife’s account in Malaysia and that she had confirmed that. In addition, he had received other monies for expenses in Australia up to $8,000.

63. The offender also confirmed that he had debts in Malaysia of 10,000 R, together with other debts that he could not otherwise pay.

64. When questioned about the man known to him as “Dennis”, he said he met him after he arrived in Australia. He had been introduced to him over the phone by someone in Malaysia and agreed that he called a number of times. He said he told police that Dennis took him to rent the warehouse and gave him monies to expend on expenses. He gave the police no further information in respect of Dennis because he said he did not know Dennis very well. He agreed that he did tell the police that Dennis was a go-between and that he was there to help him. He had no further information about Dennis that might assist in the police enquiries.

65. In re-examination the offender gave evidence that his first contact with Dennis in Australia was when he called him by phone. The information had been provided by Ah Dee in Malaysia and he saw Dennis less than 10 times before his arrest. He had met him at the café and Dennis had given him the address of the warehouse because he didn’t know where to start.

66. The offender gave evidence that he only became aware of how much money he was going to be paid after he arrived in Australia. He was first told that that was 80,000 R. It was common ground that the relevant exchange rate at the time was three R to one Australian dollar. The payment was increased to 180,000 R after his arrest because the police told him that he should bargain with the people in Malaysia. The offender confirmed that it had been his intention to sell the scrap metal from the pumps and keep the money for himself. He didn’t know that the metal was not worth anything in Australia. Before coming to Australia he had a scrap metal business, buying and selling metal for money in Malaysia.

67. Aside from Dennis, the offender said that he was not dealing with anyone else in Australia. He depended on Dennis to tell him what to do.

The Crown Submissions

68. The Crown relied on detailed and thorough written submissions that set out the relevant sentencing principles. Counsel identified the two main issues on sentence as being:

1. The offender’s role and involvement in the importation of the drugs and the level of that involvement; and

2. The extent of the offender’s assistance given to the police following his arrest.

69. The written outline set out the conduct of the offender as follows:

1. “On 26 February 2013, the Offender obtained an air ticket to Australia and two weeks later on 10 March 2013, the offender arrived in Australia from Malaysia purporting to be a tourist.

2. In March 2013, the Offender sought after, located and entered into a lease for the warehouse in Marrickville which he intended would be the consignee address for the importations;

3. Between about 14 March 2013 and 21 May 2013, by liaising with the Customs broker, the owner of the Marrickville Warehouse, and the transportation company, the Offender arranged and made payments for Customs clearance, the transportation, the unloading and the storage of 50 centrifugal pumps and 245 knapsack sprayers – which the Crown submits was a “dry run” for the heroin importation proper in June (“heroin importation”);

4. In liaising with the above mentioned parties, the Offender used telephone communications service ending in 909 which was subscribed in a false name and address;

5. At a date prior to the “dry run” importation, the Offender provided the address to the Marrickville warehouse, his mobile telecommunications service ending in 594 which he purchased under a false variation of his name and false address, a false ABN number and his email address to an unknown person in Malaysia to be used as the consignee’s details for the “dry run” importation and the heroin importation;

6. On 1 May 2013, the Offender opened two bank accounts in his name at a false address which enabled unknown persons in Australia to deposit a total of $12,950 which was at the Offender’s disposal;

7. The offender also requested and obtained a total of $10,888 over 4 occasions through international transfer directly from Malaysia to be used as expenses for the heroin importation;

8. On 22 May 2013, the Offender purchased tools for his use in the extraction of the concealed heroin from the pumps;

9. Between 14 June 2013 and 18 June 2013, the Offender liaised with TNT to obtain delivery of the importation documents relating to the heroin importation and subsequently received those documents;

10. Between 13 June 2013 and 21 June 2013, the Offender again liaised with the Customs broker to arrange Customs clearance of the heroin importation and make payment for the Customs and Quarantine fees, Customs broker fees and port charges. He also liaised with the transportation company and arranged delivery and unloading of the heroin importation;

11. Throughout the time the Offender was in Australia, the Offender directly liaised with syndicate members from the Malaysian end of the importation, took instructions and directions from them and also reported back the status in Australia. In these conversations, the Offender engaged in negotiations to increase the amount he was to be paid for his role in Australia;

12. Throughout the time the Offender was in Australia, the Offender met with an Australian syndicate member identified as “Dennis” and was in telephone contact with him;

13. In liaising with the Malaysian and Australian syndicate members, the Offender used telephone communications services ending in 909 and 710 which was also subscribed in a false name;

14. On 21 June 2013, the Offender took delivery of the container and padlocked it overnight;

15. On 22 June 2013, the Offender, unloaded the boxes from the container using a forklift and other equipment borrowed from the warehouse owner and carried them into the Marrickville warehouse;

16. The Offender commenced disassembling the centrifugal pumps with a view to extracting the heroin from all 422 pumps; and

17. The Offender intended to then supply the extracted heroin to another person in Australia for further distribution.”

70. It was on that basis that the Crown submitted that the offender played a significant and high level role in the enterprise. He had travelled to Australia for the specific purpose of dealing with the heroin and he was solely responsible for the Australian end of the importation, arranging the clearance, transportation, storage and extraction of the drugs. He had arrived in Australia three months prior to the actual importation and had provided the wherewith all for the importation, including a dry run for the container that arrived in May 2013. He was also trusted with information about how the heroin was concealed and how to extract it.

71. Also relevant in the Crown’s submission was the amount of the drug, namely 69.24 kilograms. The calculated pure weight of the heroin was 49.42 kilograms. This was highly relevant in determining the objective seriousness of the offence, which should be assessed as the worst category of its type, relying on R v Nguyen & Ors (2005) 157 A Crim R 80 at [110].

72. Not only was the offender involved in the importation, but he was also clearly involved in the next step, namely, the on-selling of the drugs in Australia.

73. The Crown submitted that financial reward was the obvious motivation for the offender’s involvement and that the objective seriousness of the offending was aggravated where it was committed for financial reward, relying on R v Kaldor (2004) 150 A Crim R 271 at [104] and R v Lee [2007] NSWCCA 234 at [32].

74. With respect to the assistance provided by the offender, the Crown submitted that there was an overwhelming case that that amounted to little if any assistance in fact, and further, that the court should find that the offender sabotaged the police case by alerting the people who were controlling the importation that there was a problem and that he was under arrest.

75. The Crown submitted that I should further take into account that shortly after 4am on 9 July 2013 the evidence established that the offender, using a telephone service ending in 268, placed the following four telephone calls that were unanswered:

1. 4.14am – 0452074409 – This was a falsely subscribed service that was used by Dennis Ngui who is a person the Offender met after leaving the Marrickville warehouse on 21 May 2013 referred to in paragraphs 32 and 33 of the Statement of Facts.

2. 4.18am – 0434045851 – This service was believed to be used by the Offender’s flat mate Alex Lim, born 12 August 1976.

3. 4.18am – 0423074480 – This is a falsely subscribed service that was used by known syndicate member Choy Ka Ho, born 30 March 1987.

4. 4.19am – 0478013769 – This is another falsely subscribed service that was used by Choy. Choy was subsequently arrested on 9 July 2013 for his alleged involvement in the importation and manufacture of 149.7 kilograms of methamphetamine.

76. Further, his conduct in alerting both Big Brother and Pin to the fact that there was a problem was established in that they then did not contact him for a period of time. He maintained his contact with Ah Dee merely to ensure that he was paid, and that the money was paid into his wife’s account in Malaysia. The court should reject the credibility of his evidence to the effect that it was the police who suggested he should get paid for his role. Any discount for his assistance should reflect a low level of assistance and be a nominal discount at best.

77. The Crown submitted that general deterrence was relevant as a fundamental consideration when sentencing an offender for such an offence, and a clear signal should be sent to would be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

78. The Crown acknowledged that the offender’s plea of guilty had been entered at the earliest possible time and should be taken into account as a mitigating factor demonstrating a willingness to facilitate the course of justice and having a utilitarian value in saving the community the expense of a contested trial. It was further acknowledged that a range of discount of 10 - 25% is reasonable to adopt in respect of Commonwealth offences. It was further submitted that the court may consider whether the offender’s plea was motivated by willingness to facilitate the course of justice or was simply “recognition of the inevitable”, as a plea entered in the face of a strong Crown case will not be afforded as much as a plea entered in circumstances where the case may be weak. This, however, was a case where the plea was simply “recognition of the inevitable”. The Crown submitted that the court would not find that the plea was indicative of remorse and contrition as the offender had attempted to minimise his involvement, knowledge and role in the offending.

79. The Crown submitted that the offender was not full and frank in his assistance to police and his proffered assistance could not be regarded as completely honest or genuine. Any discount given for that assistance should be low given the following:

1. A short time after agreeing to assist police, the Offender used a previously agreed code to alert ‘Pin’ that he was in trouble by speaking in Cantonese within a conversation in Hokkien;

1. A short time after agreeing to assist police, the Offender alerted ‘Big Brother’ that he was in trouble by coughing twice during their conversation;

2. The Offender did not alert ‘Ah Dee’ as he had done for the other two Malaysian syndicate members and managed to continue the ruse that he had not been caught by police for a period of 17 days over 41 telephone communications. However, he had his own financial motivation in doing so and in pretending that he was in the process of extracting the heroin, the Offender requested Ah Dee to make up front payments into his wife’s bank account in Malaysia. During this period the Offender was able to secure for his family at least ‘160’ which the Offender instructed his wife to use to pay off both his credit cards and to put the remainder in his savings account;

3. Although the Crown concedes that the controlled operation was discontinued on 9 July 2013 due to AFP’s operational reasons and not by any fault of the Offender, ultimately when viewed on ‘objective and pragmatic’ grounds, the Offender’s assistance did not lead to any further intelligence being gathered or lead to further arrests; and

4. In the early hours of the day of proposed meeting between the Offender and a person in Australia, the Offender made unauthorised telephone calls to associates in Australia. Despite knowing the contact details for persons in Australia involved in this enterprise and having met Dennis Ngui on the day he took delivery of the dry run importation, the Offender did not disclose their identities or their contact details to police as part of his co-operation or assistance.

80. Ultimately, the Crown submitted that the offender played a significant role in a very large commercial venture in respect of the importation of a large quantity of drugs. He arranged the warehousing of those drugs and for the “dry run” of the first container delivered. He was well aware of the high commercial value of the venture and the very large amount of heroin involved. It was not a spur of the moment offence and he spent a long period of time in Australia setting up the Australian side of the venture. His significant role was carried out for significant financial gain.

81. In terms of comparative sentencing, the Crown referred the Court to a number of similar cases including that of DPP v Peng [2014] VSCA 128, R v Nguyen [2010] NSWCCA 238, R v Hong [2012] NSWDC 267. Of those cases, Hong bore the most similarity to the present, having been charged pursuant to s 307.5(1) and s 11.1 of the Criminal Code in respect of the importation of 40 kilograms of heroin with a pure weight of 24.69 kilograms. After 25% discount for an early guilty plea, he was sentenced to a head sentence of 15 years and a non-parole period of 10 years.

The Offender’s Submissions

82. Counsel for the offender submitted that in assessing the offender’s role in the enterprise, the court would have regard to the following factors:

• He was not a principal

• He was not the mastermind

• He was not involved in any of the planning

• He was not involved in any of the financing

• He did not hold a senior or organisational post

• The principals were clearly distant from him

• He was totally reliant and dependent upon the directions and financing by others

• He did not have an overview of the organisation relating to this importation and was provided with step-by-step instructions on what appeared to be a need to know basis

• He did not stand to gain substantial financial reward for his involvement

• He was sent money to cover expenses

• He was unaware of the person to whom he was to report to

• His trip and travel to Australia was arranged by others.

83. It was further submitted that the offender did not bring to the enterprise any particular skill, he was merely sent to Australia to do a task. Further, the money he received represented between $26,000 and $27,000 Australian dollars for three months work. It was not a share of the profits of the enterprise and he was therefore at a low level in the organisation.

84. It was submitted that the court would not accept the Crown submissions that the offender was solely responsible for the organisation in Australia. He was clearly answering to people in Malaysia and relied on their directions and on the person known as “Dennis”. He was clearly not in charge of the Australian operation and it was submitted that he did not know who the drugs were to be distributed to. He had conceded that he had spent time doing the things he was instructed to do.

85. It was submitted that his belief that he might make money from the scrap metal was indicative that he did not hold a high role in the organisation.

86. Following his arrest, his continuing communications with Ah Dee and particularly those discussions which involved his remuneration, were designed to convince those higher up the chain to have contact with him and for him to regain their confidence. It was submitted that he had to sound genuinely committed to getting his money to keep them engaged in the operation.

87. By reference to the various phone calls recorded in exhibit 3, it was submitted that the content of the phone calls was not clear and there should be no finding that those higher up in the organisation were put on notice or warned by the offender. For example, in call number 28 made on 22 June 2013, Cantonese was spoken by the other person taking the call, not by the offender. In any event, prior to the police raid on the premises on 22 June 2013, Pin was already on notice that the heroin was gone. Further, in call 280, at a time when the police were outside the premises, the offender had said to Pin “someone knocking on the door”, and “in trouble already”.

88. With respect to the assistance given to the authorities, it was submitted that the offender’s subsequent conduct supported a finding that he was genuinely trying to assist. The fact was that he did not have a great knowledge of the people higher in the hierarchy, for example, he did not know Pin and he was provided with a contact number for Dennis. Notwithstanding the difficult circumstances, he managed to regain the confidence of the people in Australia to the point of arranging a meeting that afternoon to distribute the drugs. He had worn a wire to a meeting and put himself at considerable risk and in doing so, had exposed his family to great risk in Malaysia. The offender had regained the confidence of those involved by being adamant about getting his money, and it was the police decision not to continue the operation, notwithstanding that it could have led to significant intelligence and further arrests. It was submitted that the evidence supported a finding that the offender was prepared to continue to assist the AFP up to the point of on-selling the drugs. In those circumstances, the Crown characterisation of the assistance as nominal was unfair. It, in fact, amounted to significant assistance given freely.

89. The offender disputed that he made any unauthorised calls on 9 July 2013. Whilst the evidence was unchallenged, the fact was that no contact was made and the matter would carry little weight in the sentencing process. The police clearly controlled the phone calls and there was no evidence that the offender had access to the particular phone at the time of the making of the calls. In any event, he was aware that all calls he made were monitored.

90. It was submitted that little turned on the offender first naming Big Brother as Ming Zhai for the first time in his evidence before the court. There was nothing to suggest that he knew anything more about that person and it was clear that those higher up in the hierarchy make it very difficult for themselves to be detected. It was submitted that the offender’s plea of guilty was made at the earliest opportunity and he should get a full discount for that.

91. Counsel submitted that the role of the offender here should be categorised as somewhere between categories 2 and 3 of the four categories identified by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194 as follows:

“(1) Importation in tens or hundreds of kilograms, value in the millions of dollars, no assistance, principal or part of the organising committee: head sentence in range 25 years to life, NPP in range 8.5 to 30 years.

(2) As in (1) but upper management role and plea of guilty: head sentences in the range of 18 to 24.5 years, NPP in range of 10 to 16 years.

(3) Quantity of drugs below 7 kilograms, mid range role, discount for assistance: head sentence in the range of 8 to 15 years, NPP in range of 4 to 11 years.

(4) Lower role, often good character and no prior convictions: head sentence range 6.25 to 8 years, NPP from 3 to 4.5 years.”

92. Here the offender was not involved in management, had entered a plea of guilty, was dependent on others for his role and had no prior convictions.

93. With respect to the discount for his assistance to the authorities, it was acknowledged that the offender did not warrant the highest level of discount, however, he was still entitled to a significant discount because of the immediate assistance given to the police, the risk that that involved to himself and his family, and the preparedness he had indicated to the police to continue on with his assistance at a time when they terminated the operation.

Determination

94. Section 16A of the Crimes Act 1914 (Cth) provides as follows:

“(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence – any victim impact statement for the victim;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(fa) the extent to which the person has failed to comply with:

(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or

(ii) any obligation under a law of the Commonwealth; or

(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g) if the person has pleaded guilty to the charge in respect of the offence – that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”

95. In determining the nature and circumstances of the offence pursuant to s 16A(2)(a), I accept the Crown’s submission that this enterprise was a very sophisticated, highly planned and organised enterprise involving substantial financial investment involving first, an importation of centrifugal pumps and sprayers by way of a dry run in May 2013, followed by the container importation which arrived in June 2013. Moreover, I find that the offender had a substantial role to play in the importation as the operative in Australia. The facts outlined above demonstrate that in February 2013 he had purchased a holiday tour package for a seven day tour of Sydney and Melbourne and had departed Malaysia on 9 March 2013. Immediately upon arrival in Sydney, he purchased five pre-paid telecommunication services which were used to perpetrate the importation. The offender was responsible for renting the warehouse space in March 2013 and organising the consignment documentation for both the dry run in May and the importation in June 2013. I am satisfied beyond reasonable doubt that he was not a principal but followed directions given to him by others. I find he was involved at a senior level where he was largely unsupervised and played a critical and central role in the importation of the drugs.

96. Further, once the consignment arrived, the offender, having bought appropriate tools, proceeded to dismantle the armatures contained within the pumps so as to unpack the drugs. I am satisfied beyond reasonable doubt that he must have known that there was a large quantity of drugs involved in the importation. In fact, the pure weight of over 49 kgs of heroin of itself indicates the seriousness of the offending being of a high level here. This is one factor relevant to sentencing – see R v Lee, supra, per McClellan CJ at CL at [23], but not necessarily the most important.

97. The enterprise took place over a long period of time during which the offender had numerous telephone communications with persons in Malaysia and in Australia. He was provided with money for his expenses and was compliant with directions given to him to further the operation. McClellan CJ went on to say at [26] in R v Lee:

“The fact that another may be the mastermind does not mean that the person responsible for managing the importation into Australia is properly described as having only a middle level of responsibility. It must be remembered that the offence is ‘importing’ and the criminality of the offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation.”

98. Pursuant to s 16A(2)(m) I have had regard to the antecedents of the offender as set out in the report of Laura Durkin dated 5 June 2014 (exhibit 1). His father died when he was relatively young and at 14 years of age he left school and became the provider for his family. At the age of 21 he left home for the first time and moved to Singapore to obtain higher paying work and was there for 11 years before returning to Malaysia in 2003. He worked in Malaysia in sales until 2011 when he was made redundant. He fell into debt and that provided his incentive to agree to come to Australia.

99. The offender is married with two teenage children. The younger daughter has been diagnosed with Autism and Attention Deficit Hyperactivity Disorder (ADHD).

100. The offender is not a frequent user of drugs or alcohol. The offender denied to Ms Durkin that he was aware that the operation involved importing drugs into Australia, but acknowledged that it involved some form of criminal conduct. He told her that he became concerned about the nature of the operation whilst in Australia, however, out of loyalty to his friend and to show his gratitude for flying him over to Australia and providing for him whilst he was there, he continued to do the work. He further told Ms Durkin that it was following his arrest that he became aware that the goods imported were drugs, but that he was still unaware of the quantity and was not entirely sure what drugs were imported.

101. I do not accept that as a truthful account of the offender’s involvement in the operation. Rather, I find that the offender was aware before he left Malaysia of the role he was to play in accepting delivery of the consignment of drugs in Australia and dismantling the machinery to access the drugs.

102. The offender did express to Ms Durkin considerable and genuine remorse for his conduct. He was concerned about the impact of his criminal conduct on his family and also had come to realise the impact of drug use on the wider community. He confirmed that in his evidence.

103. Ms Durkin reported on the difficulties that the offender was facing in custody and his loss of relationships. She recommended that he engage in therapies that would support him in understanding the impact of his offending and also improving his social skills. She recommended a program known as “Think First”.

104. I find that the offender has pleaded guilty at the earliest opportunity to the charges and is therefore entitled to a utilitarian discount on his sentence. However, it was inevitable that he do so, given the strength of the Crown case against him. His movements and phone calls had been monitored, and the container tracked once it was found to contain the drugs. Notwithstanding that, I find that the plea of guilty does indicate contrition and remorse on the offender’s part and therefore I intend to discount his sentence by 20% in respect of his plea of guilty.

105. A more difficult question is the characterisation of the cooperation provided by the offender to law enforcement agencies and his assistance provided over the period from 22 June 2013 to 9 July 2013. I am satisfied, beyond reasonable doubt, that he did cooperate with the AFP and provided his assistance willingly. However, in doing so, I am satisfied beyond reasonable doubt that he put on notice two of the persons higher up in the hierarchy who were controlling the operation, namely, “Big Brother” and “Pin” by prearranged codes in telephone communications with those persons. That ensured that there was no further contact for some time by either of those persons with the offender. Neither person has been traced by the authorities.

106. Further, the offender has benefited from the period during which he rendered the assistance with the AFP by ensuring that monies were paid into his wife’s account for his role in the enterprise. To that extent, his family have benefited from his role, and whilst his Counsel characterised that conduct as being conduct that ensured that the principals in Malaysia continued to engage with him to further the enterprise, it is clear from the content of the telephone call from Big Brother that they regarded him as pressuring them to pay the money to his family. In any event, he derived a benefit from that conduct.

107. Viewed objectively, the assistance that he provided to the authorities was minimal. For example, he had not provided the name of Big Brother until he gave evidence on the sentence hearing. That was clearly information that he had known for some time before he came to Australia. I accept his evidence that he was willing to continue to assist the authorities as at 9 July 2013 when the controlled operation was terminated, however, the fact remains that his assistance led to the arrest of no other person involved in the importation. Whilst it may have led to the identification of Big Brother, Pin and Ah Dee, none of those persons have been traced. The assistance therefore amounts to minimal assistance given only for the purpose of obtaining a more lenient sentence. In those circumstances, I find that the offender is entitled to a further discount on sentence of 5% for the assistance he has given to the authorities.

108. I accept the Crown’s submissions and it was not disputed by counsel for the offender, that deterrence is an important matter in the sentencing process of drug offenders. A clear message must be sent to those contemplating the importation of large quantities of prohibited drugs into Australia, that in doing so, they expose themselves to the imposition of lengthy custodial sentences. By imposing a maximum penalty of life imprisonment for the principal offence here, Parliament has sent a strong message that such offending is to be regarded of the most serious kind.

109. Pursuant to s 16A(2)(n) I find that there are good prospects of rehabilitation of the offender here. He will, however, have to engage in programs that are available to him whilst in custody over a lengthy period of time. The offender has been in custody since his initial arrest on 22 June 2013 and I accept the Crown’s submission that any sentence should be backdated to 22 June 2013. However, acknowledging that, as a foreign prisoner with no visitors, his imprisonment will be more harsh than that of the ordinary prisoner and therefore requires “some, though not much recognition”, as per Adams J in R v Huang [2000] NSWCCA 238 at [19]. In R v Ferrer-Esis (1991) 55 A Crim R 231 Hunt J said at [239]:

“The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact.”

There is no evidence that he otherwise suffers greater hardship than the general prison population.

110. The second offence of possession of property contrary to s 527C(1)(a) of the Crimes Act 1900 (NSW) relates to the offender’s possession of a false driver’s license containing a photo. This item was to be used by him if identification was required and it had a false name on it. However, he had not been requested to provide such identification at the time of the controlled delivery and it was not actually used in the importation. The Crown has submitted that it would not be inappropriate for any sentence in respect of that charge to be dealt with concurrently and I intend to proceed to sentence the offender concurrently in respect of that offence.

111. I am satisfied that no other sentence than a sentence of imprisonment is appropriate in all of the circumstances of the offending here, pursuant to s 17A(1) of the Crimes Act 1914 (Cth).

112. I have had regard to the cases referred to by both parties as to the principles of sentencing outlined therein and the sentences imposed for like offences. Those sentences are a guide or yardstick for the sentence I am to impose – see Cth v De La Rosa, supra, per Simpson J at [304], however, each case must turn on its own facts.

113. Having regard to the objective seriousness of the principal offence here, the imposition by Parliament of a maximum sentence of life imprisonment, the need for general and specific deterrence, and the other matters outlined above, after a discount as referred to above, totalling 25%, I intend to impose a head sentence of 15 years, and a non-parole period of 10 years.

114. In respect of the offence pursuant to s 527 C(1)(a) of the Crimes Act 1900 (NSW) I intend to sentence you to a fixed term of imprisonment of 4 months to be served concurrently with the above sentence.

115. In coming to that sentence I am mindful of the principles of parity, proportionality and totality referred to by the High Court of Australia in Pearce v R (1998) 194 CLR 610 at [45]. I further intend to order that the sentence commences on 22 June 2013.

116. I acknowledge that the offender faces deportation upon his release from prison. He should therefore understand that the period of imprisonment that he faces will be for not less than the non-parole period that I have specified. Further, that there is no automatic release on parole and that he will have to apply for such an order, which if made in the event that he is not deported, will be subject to conditions which if breached would result in him having to serve the whole of his sentence.

Orders

117. I make the following orders:

1. XY you are convicted of the offence pursuant to s 307.1(1) of the Criminal Code(Cth) that you did import a commercial quantity of border control drug; between 10 March 2013 and 22 June 2013 at Sydney, New South Wales, you did import a substance, the substance being a border control drug, namely, heroin and the quantity imported being a commercial quantity, contrary to s 307.1(1) of the Criminal Code (Cth).

2. In respect to that offence I sentence you to a term of imprisonment of 15 years to commence on 22 June 2013 and to terminate on 21 June 2028.

3. I fix a non-parole period of 10 years to commence on 22 June 2013 and to terminate on 21 June 2023.

4. You are convicted of the offence pursuant to s 527C(1)(a) of the Crimes Act 1900 (NSW). I sentence you to a fixed term of imprisonment of 4 months to commence on 12 March 2015 and expire on 11 July 2015, to be served concurrently with the above sentence.

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Decision last updated: 13 March 2015